CO885-(13-15) — Page 66

7219.

#

1

No. 117.

(CANADA.)

PUBLIC RECORD OFFICE

། ། ། :། ; །

C.O.

Reference :-

-885

13 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

MY LORD,

LAW OFFICERS to COLONIAL OFFICE.

Royal Courts of Justice, April 12, 1888. We were honoured with your Lordship's commands, signified in Sir Robert Herbert's letter of the 23rd ultimo, stating that he was directed by your Lordship to transmit to us the accompanying Act of the Canadian Legislature, entitled "An Act to 50&51 Vict. amend the law respecting procedure in criminal cases," which was passed in the last c. 50. session of the Dominion Parliament, and had been assented to by the Governor General, and to invite our attention to subsections 3 and 5 of the new section which was substituted by section 1 of the present Act for-section 268 of the Criminal Procedure Act (Chapter 174 of the revised Statutes of Canada), viz. :—

*

C

Subsection 3. "The judgment of the Supreme Court shall in all cases be final and conclusive."

Do

Canada, c. I

Subsection 5. "Notwithstanding any Royal prerogative or anything contained in* Revised the 'Interpretation Act' or in the Supreme and Exchequer Courts Act' Statutes of appeal shall be brought in any criminal case from any judgment or order of any tlbid., c. 1.35. court in Canada to any court of appeal established by the Parliament of Great Britain and Ireland, by which appeals or petitions to Her Majesty in Council may "be ordered to be heard."

That Sir Robert Herbert was to enclose a copy of the (Canadian) Supreme and 38Vict. c. 11. Exchequer Courts Act, 38 Victoria, Chapter 11 (now embodied in Chapter 135 of the rovised Statutes of Canada), the 47th section of which (now the 71st section of Chapter 135) was as follows:-"The judgment of the Supreme Court shall in all cases

be final and conclusive, and no appeal shall be brought from any judgment or order

of the Supreme Court to any court of appeal established by the Parliament of Great "Britain and Ireland, by which appeals or petitions to Her Majesty in Council may be ordered to be heard, saving any right which Her Majesty may be graciously pleased " to exercise by virtue of Her Royal prerogative."

++

That from the enclosed printed correspondence it would be seen that on account of N. A.. the 47th section great hesitation was felt as to advising Her Majesty to allow that No. 84 and Act, and that ultimately, after reference to the Council Office, the Law Officers, and

No. 844. the Lord Chancellor, and after the Canadian Minister of Justice had come to England ence respec Correspond and conferred with the Secretary of State (the Earl of Carnarvon) and the Lord ing Supren e Chancellor, it was allowed, but that in a secret despatch accompanying the one Court, conveying its allowance Lord Carnarvon pointed out (1) that the Act did not purport to Canada. take away any right of appeal to Her Majesty in Council from any judgment of a court in any province of Canada as to which a right of appeal then existed; (2) that the words in section 47, "the judgment of the Supreme Court shall in all cases be final and conclusive," appeared to be introductory and correlative to the negative words which followed "no appeal shall be brought from any judgment or order of the Supreme Court "to any court of appeal established by the Parliament of Great Britain and Ireland, by "which appeals or petitions to Her Majesty in Council may be ordered to be heard” and that as Parliament had not established, and was not likely to establish, any such court of appeal, that portion of the clause would seem to be inoperative; (3) that supposing the affirmative words, "the judgment were to be looked upon as operative, they must be read in connexion with the saving conclusive," of the Royal prerogative, and that viewing the enactment in that way Her Majesty's Government were glad to be able to arrive at the conclusion that there was no reason for advising Her Majesty to disallow the Act.

* * 船 *

***

:

That in the case of "Johnston v. Minister and Trustees of St. Andrew's Church, Montreal" (L. R. 3 Appeal Cases 159), upon an application for leave to appeal from a judgment of the Supreme Court of Canada, the Judicial Committee, while refusing the application on the merits, considered the question whether there was power, notwithstanding section 47 of the Canadian Act, 38 Victoria, Chapter 11, to allow the appeal, and held (1) that the intermediate negative words “no appeal shall be brought &c." might be omitted from consideration because they referred to the hypothetical establishment of a court by the Imperial Parliament, and that no such court had been established; (2) that, reading the section as if those negative words were omitted,

A

52950.-17. 25.-4/88.